Roberson v. Keck

• Decision Date: 25 June 1937
• Docket Number: No. 13706.,13706.
• Citation: 108 S.W.2d 840
• Parties: ROBERSON et ux. v. KECK.
• Court: Texas Court of Appeals

108 S.W.2d 840

ROBERSON et ux. v. KECK.

No. 13706.

Court of Civil Appeals of Texas. Fort Worth.

June 25, 1937.

Rehearing Denied September 24, 1937.

Appeal from District Court, Montague County; Earl Hall, Judge.

Suit by L. Keck against O. G. Roberson and wife. From a judgment for plaintiff, defendants appeal. No record having been filed, plaintiff moves to have the judgment affirmed on certificate, and defendants answer praying that the appeal be dismissed for want of jurisdiction.

Motion overruled, and appeal dismissed.

True Strong, of Nocona, for appellants.

Donald, Kearby & Donald, of Bowie, for appellee.

SPEER, Justice.

L. Keck, hereinafter referred to as appellee, sued O. G. Roberson and his wife Madge Roberson, who will be referred to as appellants, in the district court, of Montague county for title and possession of certain real estate, and for rentals during the time appellants were alleged to have wrongfully withheld from appellee the possession of the property.

On February 13, 1937, the court rendered judgment in favor of appellee for title and possession of the real estate, and against appellants for $240 as rentals due for wrongful detention.

On March 3, 1937, appellants filed their supersedeas appeal bond in the sum of $1,000, signed by appellants as principals and by T. B. Cunningham, A. P. Howard, and W. W. Price, as sureties.

No record having been filed in this court, on May 13, 1937, the appellee filed his motion to have the judgment of the trial court affirmed on certificate. Appellee's motion was accompanied by a certified copy of all necessary proceedings had in the trial court, required by article 1841, R.C.S. 1925.

On May 28, 1937, and prior to the submission of appellee's motion to affirm on certificate, appellants filed in this court their answer or replication to appellee's motion to affirm, in which answer it is claimed that this court is without jurisdiction to enter an order of affirmance on certificate as prayed for, because: The notice of appeal given by appellants in the trial court was not filed within two days from the date on which judgment was rendered; nor were such exceptions to the court's judgment and notice of appeal given by appellants in open court, nor during the term of said court at which judgment was rendered. By appellant's challenge to the jurisdiction of this court, it is claimed that the term of court at which judgment was entered could only continue for six weeks and that the term expired by operation of law on February 13, 1937, the date on which judgment was rendered, and that the term was not extended beyond that time for any purpose. That immediately after the rendition of judgment in this case, Judge Earl Hall signed the minutes for the term and left town. Judge Hall resided in Henrietta in Clay county, Tex. That counsel for appellants endeavored to find the Judge but learned he had gone to Austin, Tex. That counsel prepared and left at the home of Judge Hall, in Henrietta, Tex., the notice of appeal filed in this cause. (This instrument will be hereinafter set out.) Allegations were made that Judge Hall returned and received the instrument on February 15, 1937, and mailed it to the clerk of the district court of Montague county, where it was received on February 20, 1937, and, under order of the judge, it was filed as of date February 13, 1937, the day on which judgment was rendered. The allegations of appellants' motion are supported by the affidavits of Judge Earl Hall and Chas. C. Cox, presiding judge and clerk, respectively, of the district court of Montague county. Prayer was that the case be not affirmed on certificate, but that the appeal be dismissed for want of jurisdiction in this court to enter any other order in the case.

The motion of appellee is sufficient in all respects to require the affirmance of the judgment below on certificate, unless by the replication of appellant and the accompanying affidavits we should find we are without jurisdiction. The certificate presented by appellee discloses the proceedings in the trial court, the judgment rendered, exceptions thereto and notice of appeal, and the filing of the supersedeas appeal bond. Upon the face of the record these matters are all regular and within proper time to confer jurisdiction upon this court. The replication and motion of appellant with attached affidavits of the judge and clerk show the recitations in the record, to the effect that exception to the judgment rendered and notice of appeal given in open court within the time shown therein are false.

Article 1822, Rev.Civ. Statutes 1925, relating to Courts of Civil Appeals, provides: "Said courts shall have power, upon affidavit or otherwise as by the courts may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction."

The foregoing article of our statutes has been discussed by the courts many times. A motion by appellant to dismiss the appeal for the reasons shown, in so far as we are able to find, has not been before the courts in any of the adjudicated cases, they have either been requests by appellants to supply a defective record with elements essential to the jurisdiction of the appellate court, which were inadvertently omitted from a transcript of the record, or, in some instances, as shown, was attacked by appellee in an effort to show it did not speak the truth, in consequence of which the appeal should be dismissed. In the case before us the appellants who relied upon the record as made, and here shown, for their appeal, seek by ex parte affidavits to show the record does not speak the truth in the matters above pointed out, and therefore we are without jurisdiction. We are not to be understood as holding that the question of our jurisdiction in the case could not be raised by appellants, who invoked it, the same as could the appellee, since it is a matter that could not be waived by either or both parties.

The construction of the above statute as revealed by the decisions is not at all harmonious. The chief difference between the adjudicated cases seems to be when and under what circumstances may the record of proceedings had in the trial of cases, and its preparation for appeal after rendition of judgment, be attacked and impeached by ex parte affidavits or other evidence dehors the record.

These differences are recognized in Texas jurisprudence, vol. 3, p. 438, § 309, where it is said: "Under the foregoing provisions (Art. 1822, supra) the usual rule as to the necessity for correcting the record in the trial court does not apply when the issue is one affecting the jurisdiction of the appellate court. The Court of Civil Appeals may receive and consider affidavits or other evidence dehors the record for the purpose of determining whether it has jurisdiction of an appeal. * * * Affidavits or other extrinsic evidence will be received and considered when they present facts affecting the jurisdiction of the appellate court which arose after final determination of the case and which could not have been put in issue in the trial court. But according to some of the Courts of Civil Appeal, the power is limited to matters not appearing of record, and evidence aliunde contradicting the record cannot be considered even when the question of jurisdiction is involved."

If the decisions are thus conflicting on the question, as indicated by the text as above quoted, it is obviously impossible for us to here hold with both. We have carefully studied the statutory provision and the two lines of decisions indicated and are inclined to the opinion that, regardless of what is contained in the transcript of the proceedings below, and more especially those matters transpiring after rendition of judgment, such as notice of appeal in open court and the filing of appeal bonds, it is our privilege and even our duty to ascertain the real facts which are essential to our jurisdiction.

By article 2253, Rev. Civ. Statutes 1925 (as amended by Acts 1927, c. 15, § 1, Vernon's Ann.Civ.St. art. 2253), it is provided that, in cases where an appeal is allowed, the appellant shall give notice of appeal in open court within two days after final judgment, or within two days after judgment overruling a motion for new trial.

In the case of Western Union Tel. Co. v. O'Keefe, 87 Tex. 423, 28 S.W. 945, it was held that, to confer jurisdiction on the appellate court, the party desiring to appeal must give notice in open court of his intentions to perfect an appeal, using this language: "We have been unable to find in the decisions of this court any intimation that notice of appeal is not necessary to the jurisdiction of the appellate court in all cases which are sought to be brought before it by direct appeal. On the contrary, it has been frequently asserted, in effect, that the notice is jurisdictional, and that it cannot be waived." Many decisions by the Supreme Court are cited in support of the statement quoted. In that case the record did not show notice of appeal was given, but appellant sought to amend the record by showing that in truth the notice was given but that it was erroneously omitted from the transcript. The Court of Appeals dismissed the appeal and the Supreme Court held the case should have been reinstated and appellant given an opportunity to correct the record. It was there further held that the jurisdiction depended upon a compliance with the statute by giving the notice of appeal in open court, and not upon the fact that the clerk made entry thereof in the minutes.

We have thus referred to the Western Union Tel. Co. v. O'Keefe Case, supra, to show that, as a requisite to jurisdiction in this court, it was necessary for appellants to have given notice of appeal in open court within the time required by statute. The appellant, in attacking our jurisdiction, shows by the ex parte affidavits of both the trial judge and the district clerk that such notice...